In a case watched closely by coastal advocates and private property rights watchdogs, the U.S. Supreme Court has declined to hear an appeal by Gregory and Diane Nies regarding the public’s use of the dry sand beach at Emerald Isle.
The highest court’s decision follows a dismissal of the appeal late last year by the N.C. Supreme Court. The court will let stand a N.C. Court of Appeals ruling that affirmed the right of the public to use that portion of the beach between the seaward toe of the primary dune and mean high water.
Coastal towns can call it a victory that retains the public trust doctrine for the right of the people to use the traditional dry sand portion of the beach.
Now six years old, the case garnered national attention and support for the plaintiffs from the Pacific Legal Foundation, which focuses on the preservation of private property rights. Oak Island, Caswell Beach, Bald Head Island and 13 other coastal North Carolina towns submitted friends of the court briefs supporting the public’s traditional beach access.
The Nies sued Emerald Isle—a south-facing strand in Carteret County—in 2011, claiming in part that the town’s rules that allowed driving on a portion of the beach in front of their house during part of the year amounted to inverse condemnation and a taking of their property without just compensation. Regulations on the placement of beach equipment on the strand further bolstered their case, the plaintiffs contended. They argued that Emerald Isle tried to use the public trust doctrine as a shortcut to avoid traditional legal processes for taking property, such as easements or an assertion of eminent domain.
Leaders of beach towns contended that accepting such an argument could curtail or even ban public access to parts of the beach.
The Nieses sold their house and land for a profit before the case was settled.
Emerald Isle won on summary judgment in 2014. The following year, the state Court of Appeals confirmed that ruling in a 3-0 decision.
In its brief to the U.S. Supreme Court, Emerald Isle stated there was no federal question that merited review.
“Under North Carolina’s own unique and long-established doctrines of public trust and custom, petitioners never possessed a right to exclude the North Carolina public from the dry sand beach. That asserted right underpins their federal claim, and petitioners concede that their federal takings claim rises or falls with that state law predicate. That leaves this court with no federal question to answer, only assertions of state law errors to correct. But there is no need to take the extraordinary step on ruling on complex questions of state property law when the state’s highest court has declined to do so.”
The town further argued that there was no taking of the Nieses’ land “because a right that was never established cannot be destroyed.”
The Nieses were represented by Washington, D.C., attorney Ruthanne Deutsch. Brian Edes was the lead lawyer for Emerald Isle. He also serves as town attorney for Oak Island.